IV. Terminology

The terms that are chosen to identify the people who are in
the process of migrating as well as the people to whom they often come into
contact are rarely neutral or noncontroversial. Certain terms, such as refugee,
have clear meanings in international law, but others do not or their
definitions are hard to match with the reality on the ground where the flows of
people are often described as “mixed.”

Migrants

For purposes of this report, the term migrant will describe
the wide range of people traveling in and through Libya and as passengers on
boats traveling irregularly in the Mediterranean. It is intended as an
inclusive rather than an exclusive term. In other words, to call someone a migrant
in this report does not exclude the possibility that he or she may be an
asylum seeker or refugee. A refugee, as defined under the 1951
Convention Relating to the Status of Refugees, is a person with a “well-founded
fear of being persecuted for reasons of race, religion, nationality, membership
of a particular social group or political opinion” who is outside his
country of nationality and is unable or unwilling, because of that fear, to
return.[1] An asylum
seeker is a person who is seeking protection and, as such, is trying to be
recognized as a refugee or to establish a claim for protection on other
grounds.

Although international law defines migrant workers,
it does not define migrants per se.[2] In the
context of this report, migrant is simply the broadest, most inclusive
term to describe the third-country nationals entering, residing in, and leaving
Libya. It includes the subset of asylum seekers who are seeking protection
outside Libya (Libya itself, as yet, does not have a refugee law and does not
grant asylum) as well as the narrower subset of people who are actually
refugees. Refugees, it should be remembered, are people who meet the refugee
definition whether or not they have been formally recognized as such.

Smugglers

International law makes a distinction between traffickers
and smugglers. The Protocol to Prevent, Suppress and Punish
Trafficking in Persons Especially Women and Children, defines trafficking as
the recruitment, transportation, transfer, harboring or receipt of persons
through “the threat or use of force or other forms of coercion...or of
the giving or receiving of payments or benefits to achieve the consent of a
person having control of another person, for the purpose of exploitation.”[3]

By contrast, the Protocol against the Smuggling of Migrants
by Land, Sea and Air defines smuggling of migrants as the procurement of
“a financial or other benefit” in order to effect an illegal entry.[4]
The distinction is blurred in Libya, however, as is the distinction between
criminals involved in illegal migration and the police tasked with enforcing
the law.

While it is the case that almost all undocumented migrants
are subjected to the threat or use of force by the people who are transporting
them, it is not clear that they generally are being coerced for the purposes of
exploitation, as defined in the Trafficking Protocol, such as, for
prostitution, other forms of sexual exploitation or forced labor.[5]
Because it is unclear whether the criminals who are involved in transporting
migrants in, through, and out of Libya consistently meet the definition of
trafficker, Human Rights Watch will use the term smuggler to refer
to these people. When quoting directly from migrants, we will use the terms
that they or the interpreters used, even though they may not be technically correct.

[5]
According to the U.S. State Department’s Trafficking in Persons Report
2009, Libya is a “tier 2, Watch List” country for human
trafficking. “Although precise figures are unavailable, foreign observers
estimate that one-half to one percent of foreigners (i.e., up to 20,000 people)
may be victims of trafficking. In some cases, smuggling debts and illegal status
leave migrants vulnerable to coercion, resulting in cases of forced
prostitution and forced labor; employers of irregular migrants sometimes
withhold payment or travel documents.” U.S. Department of State,
Trafficking in Persons Report, 2009, http://www.state.gov/documents/organization/123357.pdf
(accessed July 6, 2009).